243 Conn. 266 | Conn. | 1997
Opinion
The principal issue in this appeal is whether a municipal conservation commission, acting pursuant to the Inland Wetlands and Watercourses Act, General
The record discloses the following undisputed facts. Irwin, the owner of a 14.9 acre parcel of land in Litchfield, submitted five applications to the commission for approval of regulated activities on a proposed four lot residential subdivision.
In this certified appeal, the plaintiff claims that personal notice of the site visit was required because the visit was an integral part of an evidentiary hearing attended by agents of only one party and, therefore, that the mere posting of a public hearing agenda at the town clerk’s office as required by § 1-21 (a) violated principles of fundamental fairness applicable to administrative proceedings. The commission and Irwin argue that the site visit was merely an investigative measure, properly engaged in by the commission, and that notice pursuant to § 1-21 (a) was therefore adequate. We agree with the commission and Irwin.
It is important to note at the outset that we need not consider what protections the plaintiff should have been afforded under the due process provisions of the state and federal constitutions because she had no cognizable property interest in this case.
Furthermore, “[a] statute or ordinance providing procedural guarantees does not create a constitutionally protected property interest unless it sets forth substantive criteria that limit the discretion of the decision-making body. ... [A] party whose asserted property interest is not related to the substantive criteria but rather is grounded solely in the procedures set forth in the statute does not have a constitutionally cognizable property interest.” (Citations omitted.) Double I Ltd. Partnership v. Plan & Zoning Commission, 218 Conn. 65, 78, 588 A.2d 624 (1991). Thus, we have held that an abutter has no due process right to actual notice of a hearing. Id., 79-80 (publication notice is sufficient); Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 47, 301 A.2d 244 (1972) (constructive notice to abutter held sufficient); see also Fusco v. Connecticut, 815 F.2d 201, 205-206 (2d Cir.), cert. denied, 484 U.S. 849, 108 S. Ct. 149, 98 L. Ed. 2d 105 (1987) (actual notice to abutting landowners not required). The plaintiffs asserted interest in the notice provisions of the act is unrelated to the substantive criteria of the act. Double I Ltd. Partnership v. Plan & Zoning Commission, supra, 78. Because the plaintiff had no constitutionally
Although no constitutional due process right exists in this case, we have recognized a common-law right to fundamental fairness in administrative hearings.
The plaintiff argues that administrative fundamental fairness required that she be given personal notice of the site inspection because: (1) Irwin’s engineer attended the site inspection; (2) technical aspects of the application were discussed with the engineer outside of her presence; and (3) the commission was aware of her interest in Irwin’s applications. In essence, the plaintiff argues that, under these circumstances, the special
The commission gave notice of the site inspection in accordance with the Freedom of Information Act, which requires only that notice of meetings be posted at the town clerk’s office.
We begin with the scope of the commission’s authority to investigate and to determine whether to grant an application to conduct activities regulated by the act. The law in this regard is well settled. Although administrative adjudicative proceedings and judicial proceedings offer some of the same procedural protections, they differ markedly in their treatment of the fact finder’s reliance on nonrecord evidence. “An administrative agency can be the investigator and adjudicator of the same matter without violating due process.” New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, supra, 226 Conn. 152. “Unlike judicial proceedings, an administrative board ‘may act upon facts which are known to it even though they are not produced at the hearing.’ ” Id., 149, quoting Parsons v. Board of Zoning Appeals, supra, 140 Conn. 292; see also Pizzola v. Planning & Zoning Commission, supra, 167 Conn. 208 (zoning board may receive technical assistance in executive session); Miklus v. Zoning Board of Appeals, supra, 154 Conn. 406 (“[proceedings before an administrative board are informal and the board is not bound by strict rules of evidence and may act upon facts which are known to it, even though they are not produced at the hearing”). In fact, “an agency is not required to state all its determinations on the record so long as the record provides an adequate basis for the agency’s decision.” Samperi v. Inland Wetlands Agency, 226 Conn. 579,
Although site visits are not required by the act,
As the Appellate Court stated, and we agree, “[t]he purpose of a site visit is to acquaint the members of a commission with the property at issue.” Grimes v. Conservation Commission, supra, 43 Conn. App. 228 n.3. By contrast, the purpose of a hearing is to afford the parties the opportunity to present and to rebut evidence upon which the commission relies in reaching its decision. See General Statutes § 22a-42a (c) (1); Huck v. Inland Wetlands & Watercourses Agency, supra, 203 Conn. 536; Connecticut Fund for the Environment, Inc. v. Stamford, supra, 192 Conn. 249. Investigative procedures, such as site inspections, therefore are not an integral part of the hearing process, although the agency must disclose to the parties any information relied upon in reaching a decision so that they may comment upon it. New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, supra, 226 Conn. 152, citing Withrow v. Larkin, 421 U.S. 35, 46-55, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975); Feinson v. Conservation Commission, supra, 180 Conn. 428-29.
Because the burden is on the plaintiff to show that the commission acted improperly; Murach v. Planning & Zoning Commission, 196 Conn. 192, 205, 491 A.2d 1058 (1985); she must prove that the meeting was, in fact, a hearing in order to avail herself of the more stringent notice requirements of § 22a-42a. The record is barren of any facts indicating that the September 14,1993 meeting was anything other than a traditional site inspection. Despite the plaintiffs claims to the contrary, our review of the minutes does not indicate that McMorrow was questioned by the commissioners or that he participated
The plaintiff relies on Palmisano v. Conservation Commission, 27 Conn. App. 543, 608 A.2d 100 (1992), to support her claim that the presence of the defendant’s engineer and the alleged receipt of ex parte evidence by the commissioners at the site converted the site inspection to a hearing and therefore rendered notice of the site visit inadequate. In Palmisano, the commission received tangible evidence, consisting of a hand drawn map showing the location of a well on abutting property, during a site inspection for which no notice was given and which was held after the close of the agency hearings. Id., 545.
The facts of this case are distinguishable from Palmisano. First, as we have already stated, there is nothing
Our holding is further supported by the fact that a rule requiring the commission to give personal notice of site inspections to interested persons when one of the parties is in attendance would be unnecessarily burdensome. We have noted that, because municipal inland wetlands agencies are composed of volunteer laypersons, procedures and fact-finding must of necessity be somewhat more relaxed than for state agencies. See Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 611, 569 A.2d 1094 (1990). The formalities of a hearing would generally be incompatible with a site inspection, which often involves walking over undeveloped land. Additionally, it would be difficult to determine, under the standard proposed by the Appellate Court, when the nature and extent of a party’s interest have risen to a level that would require personal notice. Such a determination would be particularly difficult in light of the prohibition of the Freedom of Information Act against requiring members of the public to furnish their names as a condition of attendance at public hearings. General Statutes § 1-21 (a).
In this opinion the other justices concurred.
The commission is the municipal agency charged under General Statutes § 22a-42 with enforcing the act, which is codified at General Statutes §§ 22a-36 through 22a-45.
General Statutes § 22a-43 provides in relevant part: “Appeals, (a) The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality or any person owning or occupying land which abuts any portion of land or is within a radius of ninety feet of the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may, within the time specified in subsection (b) of section 8-8 from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district. ...”
The plaintiff cited numerous grounds for appealing the board’s granting of the applications, the majority of which are irrelevant to this appeal.
The plaintiff claimed that the trial court improperly had dismissed her appeal because “(1) there was substantial evidence in the record to establish that the decision of the commission was unlawful because a commission member, who voted to approve the applications, had failed to attend a site visit and was, therefore, ineligible to vote, (2) the commission lacked
The commission’s previous ruling on applications for a live lot subdivision on the same land had been appealed by both Irwin and the plaintiff. The commission agreed to a stipulated judgment in favor of the plaintiff based on inadequate notice of the public hearing on those applications. The application at issue here sought permission to construct four homes on the 14.9 acre parcel and proposed a number of measures to prevent erosion, sedimentation, flooding, surface runoff, and pollution. The applications indicated that the proposed construction would affect approximately 0.04 acres of wetlands.
Notice of the September 1 meeting was published in The Sunday Republican on August 19, 1993, and in the Torrington Register Citizen on August 26, 1993. The plaintiff concedes that this notice conformed to the requirements of General Statutes § 22a-42a (c) and that no further notice was required when the hearing was continued to September 29, 1993.
General Statutes § l-18a (b) provides in relevant part: “ ‘Meeting’ means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. . . .”
General Statutes § 1-21 provides in relevant part: “Meetings of government agencies to be public. ... (a) . . . Notice of each special meeting of every public agency, except for the General Assembly, either house thereof or any committee thereof, shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof in the office of the Secretary of the State for any such public agency of the state, in the office of the clerk of such subdivision for any public agency of a political subdivision of the state and in the office of the clerk of each municipal member for any multitown district or agency. The secretary or clerk shall cause any notice received under this section to be posted in his office. Such notice shall be given not less than twenty-four hours prior to the time of the special meeting . . . .”
The minutes of the site inspection state in relevant part “The site was walked from lots 1 to 5. The drainage watercourse on lot 1 was examined and alternatives were discussed. The other drainage through the property [was] also noted and discussed. The wetland crossing for driveways to lots 4 and 5 was noted and alternatives discussed.”
Additionally, the plaintiff conceded at oral argument that there is no constitutional due process claim in this case and that she did not argue in her brief that such a right existed.
The plaintiff and the Appellate Court rely on Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950), for the proposition that constitutional procedural due process requires personal notice in this case. In Mullane, the United States Supreme Court held that certain easily identifiable persons with cognizable property interests were entitled to actual rather than constructive notice before they could be deprived of those interests. That holding, however, presupposed the existence of a protected property interest, which we conclude did not exist in the circumstances of the present case.
The right to fundamental fairness in administrative proceedings encompasses a variety of procedural protections, including the right to adequate notice that is at issue in this case. Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974); Parsons v. Zoning Board of Appeals, 140 Conn. 290, 293, 99 A.2d 149 (1953). In a number of administrative law cases decided after Board of Regents v. Roth, supra, 408 U.S. 564, we have characterized these procedural protections as “due process” rights. See, e.g., Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 536, 525 A.2d 940 (1987); Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 249, 470 A.2d 1214 (1984); Pizzola v. Planning & Zoning Commission, supra, 207. Although the “due process” characterization, at first blush, suggests a constitutional source, there is no discussion in these cases of a property interest in terms of constitutional due process rights. These decisions are, instead, based on a line of administrative law cases and reflect the development, in Connecticut, of a common-law right to due process in administrative hearings. Although the facts of the present case do not require us to explore its boundaries, this common-law right is not coextensive with constitutional due process. See, e.g., New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, 226 Conn. 105, 152, 627 A.2d 1257 (1993); Pizzola v. Planning & Zoning Commission, supra, 207-208; Miklus v. Zoning Board of Appeals, 154 Conn. 399, 406, 225 A.2d 637 (1967). Therefore, to eliminate any further confusion, we will discontinue the use of the term “due process” when describing the right to fundamental fairness in administrative proceedings.
We are somewhat puzzled by the Appellate Court’s statement that its finding of inadequate notice is not dependent on the determination that ex parte communications took place during the site inspections. Grimes v. Conservation Commission, supra, 43 Conn. App. 234-35 n.11. The court’s determination that personal notice was required appears to be based on its conclusion, unsupported by the record, that Irwin’s engineer was “heard” by the commissioners outside the plaintiffs presence. Id.
The issues of proper notice and ex parte receipt of evidence are, in fact, distinct. While improper notice is a jurisdidional defect, rendering an administrative decision void; Jarvis Acres, Inc. v. Zoning Commission, supra, 163 Conn. 47; Winslow v. Zoning Board, 143 Conn. 381, 388, 122 A.2d 789 (1956); receipt of ex parte evidence merely shifts the burden of proof from the aggrieved party to the applicant to demonstrate that the communication was harmless. Blaker v. Planning & Zoning Commission, 212 Conn. 471, 473, 562 A.2d 1093 (1989).
See footnote 7 of this opinion.
We note that, even if the site inspection was a hearing, publication notice pursuant to General Statutes § 22a-42a, as opposed to the posting that occurred in the present case, would have been sufficient. There is no requirement of personal or actual notice in the act or in the Freedom of Information Act, although a party may take steps to assure that he or she receives heightened notice. See footnote 18 of this opinion.
In fact, the act does not require the agency to hold hearings on applications in all circumstances. General Statutes § 22a-42a (c) (1) provides in relevant part: “The inland wetlands agency shall not hold a public hearing on such application unless the inland wetlands agency determines that the proposed activity may have a significant impact on wetlands or watercourses, apetition signed by at least twenty-five persons requesting a hearing is filed with the agency not later than thirty days after the submission of such application or the agency finds that a public hearing regarding such application would be in the public interest. . . .”
The commission’s regulations require public hearings to be held “on all applications involving a significant activity.” Litchfield Conservation Commission, Inland Wetlands and Watercourses Regs., § 6.5.
The commission’s regulations provide that the agency and any specialists hired by it “shall have the right of free access to any part of the property under consideration.” Litchfield Conservation Commission, Inland Wetlands and Watercourses Regs., § 5.3.
The act requires that documents and maps relating to the application be made available to the public. General Statutes § 22a-42a (c) (1) (“[a]ll applications and maps and documents relating thereto shall be open for public inspection”).
We note that although the plaintiff had no constitutional or common-law right to notice of the hearing, she could have taken steps to assure herself of actual notice. See General Statutes § l-21c (requiring notice by mail, where practicable, to persons who have filed written request to receive such notice). The plaintiff chose not to avail herself of this mechanism. She could also have attempted to intervene as a party pursuant to General